On January 16 the Italian Authority for Communications Guarantees (AGCOM) published new guidelines on influencer marketing, marking a significant shift for influencers by imposing new obligations.
The guidelines require influencers to comply with certain rules of the Consolidated Act on audio-visual media services, known as TUSMA (Legislative Decree No. 208 of 8 November 2021), which implements in Italy EU Directive 2018/1808 amending Directive 2010/13/EU and regulating the provision of audio-media services in the EU.
Adapting TUSMA rules to influencers is challenging, acknowledges AGCOM, as influencers are not its traditional target group. Hence, AGCOM is launching a Technical Table, with the aim of better defining the rules and clarifying the legal landscape.
Who is affected by the new rules?
Not all influencers are subject to the new rules.
The guidelines apply only to those influencers – including vloggers, streamers, creators, uploaders, talent, brand ambassadors, celebrities, etc. - who meet all the specific requirements listed therein, such as:
- the main purpose of the services offered is creating and disseminating content generating revenues through commercial agreements with brands or in application of monetization agreements on social media platforms;
- the content targets Italian users.
Besides, the guidelines categorize influencers as:
i) "professional" - who (a) reach at least one million followers (calculated as the sum of all the followers registered on each platform); (b) publish at least 24 pieces of content in a year; (c) have, at least on one platform, and an engagement rate value of at least 2 percent in the last 6 months.
ii) "amateur" - those who do not reach the numbers defining professional influencers.
Stricter obligations are imposed on professionals.
New rules and severe fines
Professional influencers must comply with certain TUSMA rules, such as those protecting pluralism, freedom of expression, truthfulness, copyright, fundamental personal rights, minors, and fair and transparent commercial communication. They must make the advertising nature of content transparent, using appropriate wording to identify its commercial nature.
However, this doesn't grant amateur influencers complete freedom to advertise products. The transparency rules established by the Consumer Code and the Digital Chart still apply, a point emphasized by both the IAP and the AGCM.
Professional influencers face severe fines for non-compliance, ranging from 10,000 to 600,000 euros, particularly concerning obligations protecting minors.
AGCOM's move signals an effort to make influencers more accountable, recognizing their substantial role in digital communications. However, many questions remain open, from “influencer” definitions to sanctions and the relationship with other regulations. The Technical Table, starting work in mid-March, aims to assist operators in applying the rules, including by adopting a Code of Conduct applicable to influencers.
Authored by Maria Luigia Franceschelli, and Maria Beatrice Guardì